1922941 (Refugee) - [2024] ARTA 679

1922941 (REFUGEE) [2024] ARTA 679 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  1922941

Tribunal:General Member P Tyson
Place:Sydney
Date: 20 November 2024
Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 20 November 2024 at 9:15am
CATCHWORDS
REFUGEE – protection visa – Malaysia – dismissal decision – failure to attend Tribunal hearing – dismissal confirmed – subsequent request for decision on the papers – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 99
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Schedule 16
Migration Act 1958, ss 368, 426A
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under the Migration Act 1958 (Cth) (the Act).
Procedural background
The application was originally made to the Administrative Appeals Tribunal (AAT). The AAT invited the applicant to a hearing to be held on 11 October 2024. The review applicant did not appear before the Tribunal at the time and date of the scheduled hearing and later on 11 October 2024 the AAT dismissed the application under s 426A(1A)(b) of the Migration Act.
On 12 October 2024, the Tribunal received an email from the review applicant attaching a completed ‘response to hearing invitation’ form dated 11 October 2024. In that form the applicant indicated that she did not wish to have a hearing, but requested a decision be made on the papers. However, by that time the decision to dismiss the application had already been made, albeit not yet notified to the review applicant.
On 18 October 2024 the review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision. The review applicant was advised that reinstatement of the application could be sought within 28 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 28 day period would result in confirmation of the dismissal decision.
On 21 October 2024 the review applicant submitted a further copy of the response to hearing invitation form, dated 11 October 2024, indicating that the applicant did not want to attend a hearing and requested a decision on the papers. As the form appears to have been sent following notification of the dismissal decision, the Tribunal infers that the review applicant is requesting that the case be reinstated and a decision be made on the papers.
Legislative amendments
On 14 October 2024, after the initial dismissal decision had been made but before it had been notified, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Transitional Act also amended the Migration Act. Review applications which were previously dealt with under the former Part 7 of the Act are now dealt with under Part 5 of the Act as 'reviewable protection decisions'. Section s 426A of the Migration Act, under which the AAT dismissed the application, has now been repealed.
The ART has similar, although not identical, dismissal powers and requirements to the former AAT. Under s 99 of the Administrative Review Tribunal Act 2024 (the ART Act) the Tribunal may dismiss an application if an applicant fails to appear at a case event, including a hearing, if the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the hearing.
Section 368C of the Migration Act applies where the ART has made a decision under s 99 of the ART Act to dismiss an application for review of a protection decision. It provides that the applicant has 28 days after receiving notice of the decision under s 368B(5) to apply for reinstalment of the application. If the applicant fails to apply for reinstatement within that period, the ART must confirm the decision to dismiss the application. If the applicant applies for reinstatement, the ART must reinstate the application if it considers it appropriate to do so, or confirm the decision to dismiss the application.
Part 5 of Schedule 16 to the Transitional Act sets out transitional provisions for AAT proceedings continuing in the ART. Under item 24, where a proceeding in the AAT is not finalised before 14 October 2024, the proceeding must be continued and finalised by the ART in a way that is fair and just. The proceeding must, as far as possible, be continued under the new law. Anything that is done in the proceeding before the transition time continues to have effect for the purposes of, or in relation to, the proceeding after the transition time. Anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time. Anything done in the proceeding by the AAT is taken to have been done by the ART.
In accordance with the transitional provisions, the decision to dismiss the application is taken to be a decision of the ART under the new law and as such, s 368C of the Act applies.
Consideration of implied reinstatement request
The request by the review applicant for a decision on the papers was received only after the initial decision to dismiss had been made. In my view, the initial decision to dismiss was validly made and the Tribunal had no power to vacate it.
For the following reasons, I do not consider it appropriate to reinstate the application.
Although the dismissal decision was made under the old law, I am of the view that the dismissal of the application was consistent with the new s 99 of the ART Act. The applicant in this case was notified of the date, time and place of the hearing on 3 September 2024, over a month before the hearing which was scheduled for 11 October 2024. She was also sent reminder notices about the hearing by SMS. As set out in the initial dismissal decision, the review applicant sent correspondence to the Tribunal on 8 October 2024 indicating she had not received the original hearing invitation. However, as I found in that decision, she had in fact been properly notified of the hearing and was deemed to have received the invitation. I am satisfied that the review applicant received appropriate notice of the hearing.
The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision. In my view, the statement of decision and notice given to the applicant met the requirements of the new ss 368B and 368C of the Migration Act. Although the dismissal decision was made under the now repealed provisions, the applicant was notified of the dismissal after the commencement of the new provisions and was given the benefit of the more generous 28 day period in which to apply for reinstatement.
For the reasons given above, I am satisfied that the decision to dismiss the application made under the old law was consistent with the new law, and there is no unfairness or injustice to the applicant.
Even if it were the case that the review applicant did not, in fact, receive the original hearing invitation, she nonetheless was sent a copy of it on 9 October 2024. In my view, the review applicant had the opportunity to request a decision on the papers (or, if she wished, request that the hearing be rescheduled) prior to the hearing and the dismissal decision.
The review applicant has provided no explanation for her failure to appear, other than to indicate that she does not wish to attend a hearing. She has not given any reasons to explain why she wants a decision on the papers without a hearing. The review applicant was advised in the hearing invitation that if she consented to a decision on the papers, the Tribunal’s decision would be based on the information and evidence before it, and the Tribunal may not make a favourable decision. Despite this, she has not provided any further information or evidence to support her claims for protection.
In all the circumstances, I do not consider it appropriate to reinstate the application.
The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.
DECISION
The Tribunal confirms the decision to dismiss the application.